Citation Nr: 9835945
Decision Date: 12/08/98 Archive Date: 12/15/98
DOCKET NO. 97-31 741 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUES
1. Entitlement to service connection for a right shoulder
disability.
2. Entitlement to service connection for a left shoulder
disability.
3. Entitlement to total rating based on individual
unemployability due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from May 1969 to April 1970
and from March 1977 to December 1983.
This matter comes to the Board of Veterans Appeals (Board) on
appeal from a February 1997 rating decision of the Regional
Office (RO) which denied the veteran’s claim for a total
rating based on individual unemployability due to service
connected disability. In addition, the veteran has appealed
a June 1997 rating action which denied his claim for service
connection for bilateral shoulder disabilities.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection is warranted for
a disability of each shoulder. He claims that he injured his
shoulder during basic training. He reports that later during
service he fell off a truck and landed on his left shoulder.
He also states that an ammunition box fell on his shoulder in
service. He claims that his shoulders pop out on occasion.
He denies that he injured his left shoulder prior to service.
The veteran also asserts that he is unable to work as a
result of his service connected disabilities. He claims that
the symptoms of his seizure disorder prevent him from
working. He reports that the symptoms include memory loss.
He maintains that he is on medication for his seizure
disorder.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file(s). Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claims of
entitlement to service connection for a left shoulder
disability or residuals of an injury to the right shoulder
are well grounded. It is also the decision of the Board that
the preponderance of the evidence is against the claim for a
total rating based on individual of in employability duty
service connected disability.
FINDINGS OF FACT
1. The veteran's in-service treatment for left shoulder
complaints was acute and transitory and resolved without
residual disability.
2. A left shoulder disability was first shown many years
after service, and there is no competent medical evidence
linking a current left shoulder disorder to service.
3. The veteran sustained a separation of the right shoulder
prior to service.
4. The veteran’s pre- existing right shoulder disability did
not increase in severity during service.
5. With respect to the claim for a total rating based on
individual unemployability due to service-connected
disability, all relevant evidence necessary for an
equitable disposition of the veteran's appeal has been
obtained by the RO.
6. Service connection is in effect for residuals of a head
trauma, grand mal seizure and headaches, evaluated 60
percent disabling; status post arthroscopy of the right
knee, evaluated as non- compensable; and status post
meniscectomy of the left knee, evaluated as
noncompensable.
7. The veteran has work experience as a medical clerk and
completed at least one year of college.
8. His service-connected disabilities are not so severe as
to prevent him from engaging in employment consistent with
his education and work experience.
CONCLUSIONS OF LAW
1. The veteran has not submitted evidence of a well-grounded
claim entitlement to service connection for a left
shoulder disability. 38 U.S.C.A. § 5107 (West 1991).
2. The veteran has not submitted evidence of a well-grounded
claim of entitlement to service connection for residuals
of a right shoulder injury. 38 U.S.C.A. § 5107.
3. A total rating based on individual on employability due to
service connected disability is not warranted. 38 U.S.
C.A. §§1155, 5107 (West 1991); 38 C.F.R. §§3.340, 3.341,
4.16 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Service Connection for a Left Shoulder
Disability and Residuals of an Injury to the
Right Shoulder
The threshold question in this case is whether the veteran
has presented evidence of a well-grounded claim, that is, one
which is plausible, meritorious on its own or capable of
substantiation. If not, his appeal must fail and there is no
duty to assist him further in the development of his claim,
since any such development would be futile. 38 U.S.C.A.
§ 5107; Murphy v. Derwinski, 1 Vet. App. 78 (1990). In
Tirpak v. Derwinski, 2 Vet. App. 609 (1992), the United
States Court of Veterans Appeals (Court) held that a claim
must be accompanied by evidence (emphasis in original). As
will be explained below, the veteran has not submitted
competent evidence to support his claims for service
connection. Thus, the Board finds that his claims are not
well grounded. Accordingly, there is no duty to assist him
in the development of his claims for service connection.
When the Board addresses in its decision a question that has
not been addressed by the RO, it must consider whether the
veteran has been given adequate notice to respond and, if
not, whether he has been prejudiced thereby. Bernard v.
Brown, 4 Vet. App. 384 (1993). The Board concludes,
however, that a claim which is not well grounded is
inherently implausible, and any error by the RO in the
adjudication of the claim could not be prejudicial.
Although when a claim is not well grounded, the VA does not
have a statutory duty to assist a veteran in developing facts
pertinent to his claim, the VA may be obligated to advise a
veteran of the evidence needed to complete the application.
This obligation depends upon the particular facts of the case
and the extent to which the Secretary of the VA has advised
the veteran of the evidence necessary to be submitted with a
VA benefits claim. Robinette v. Brown, 8 Vet. App. 69
(1995). By this decision, the Board is providing the veteran
with notice of the evidentiary insufficiency of his claim,
and what evidence would be necessary to make the claim well
grounded.
Factual background
On the entrance examination in May 1969, a clinical
evaluation of the upper extremities was normal. The service
medical records show that the veteran was seen in June 1969
for complaints of right shoulder pain. He reported that it
dislocated frequently. An examination showed that there was
tenderness in the entire girdle musculature. He was seen two
days later and reported that his right shoulder had been
dislocating for more than one year. It was indicated that he
was having trouble with bars. An examination revealed clicks
and pain. An X-ray study of the right shoulder revealed no
significant abnormality. Later that month, he reported that
he had fallen the previous day and complained of lateral pain
in the right shoulder. He was treated with splinting and
medication. Still later in June 1969, he complained of right
shoulder pain. It was reported that an X-ray study was
negative. On a report of medical history in April 1970 in
conjunction with the separation examination, the veteran
denied a history of painful or “trick” shoulder. A
clinical examination of the upper extremities was normal.
In April 1982, the veteran reported that he had fallen from a
truck three days ago. He had fallen approximately 15 feet
and landed on his left shoulder and back. An X-ray study of
the left shoulder was within normal limits. The assessment
was bruise/strain. The upper extremities were evaluated as
normal on the separation examination in September 1983.
On Department of Veteran’s Affairs (VA) examination in March
1984, there was normal range of motion of the upper
extremities. No pertinent diagnosis was made.
VA medical records dated from 1996 to 1998 have been
associated with the claims folder. The veteran reported
bilateral shoulder pain in January 1997. He noted that he
had experienced pain in both shoulders for 25 years. The
assessment was bilateral shoulder pain secondary to joint
inflammation.
Analysis
Service connection may be granted for disease or injury
incurred in or aggravated by service. 38 U.S.C.A. §§ 1110,
1131 (West 1991).
With chronic disease shown as such in service (or within the
presumptive period under § 3.307) so as to permit a finding
of service connection, subsequent manifestations of the same
chronic disease at any later date, however remote, are
service connected, unless clearly attributable to
intercurrent causes. This rule does not mean that any
manifestations of joint pain, any abnormality of heart action
or heart sounds, any urinary findings of casts, or any cough,
in service will permit service connection of arthritis,
disease of the heart, nephritis, or pulmonary disease, first
shown as a clear-cut clinical entity, at some later date.
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"Chronic." When the disease identity is established
(leprosy, tuberculosis, multiple sclerosis, etc.), there is
no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service (or in the presumptive period)
is not, in fact, shown to be chronic or where the diagnosis
of chronicity may be legitimately questioned. When the fact
of chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim. 38 C.F.R. § 3.303(b) (1998).
In order for a claim to be well grounded, there must be
competent evidence of a current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.
App. 498 (1995).
The service medical records disclose that the veteran was
treated on several occasions in June 1969 for complaints
concerning his right shoulder. There is some indication in
the record that the veteran’s problems with his right
shoulder began prior to service. In this regard, the Board
notes that he related that he had experienced problems with
dislocations of the right shoulder prior to service. The
fact remains, however, that radiographic studies during
service concerning the right shoulder were normal and there
is no further indication during either period of service of
any treatment for the right shoulder.
Similarly, with respect to the left shoulder, the Board
acknowledges that the veteran, as he has testified, sustained
an injury to the left shoulder. He fell in April 1982.
However, an X-ray study at that time was within normal
limits. It is significant to point out that the upper
extremities were evaluated as normal on the separation
examination in September 1983. The first indication
following his discharge from service of problems with his
shoulders was in 1997 when he reported a long history of
shoulder pain. The board notes, however, that there is no
indication of any treatment for the shoulders for more than
13 years following his separation from service. In addition,
there is no competent medical evidence to relate to any
current disability of either shoulder to service.
The Court has held that if the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence is required. Grottveit v. Brown, 5 Vet. App.
91 (1993). Thus, his lay assertions to the effect that he
has a bilateral shoulder disability which is related to
service are neither competent nor probative of the issue in
question. Indeed, in Moray v. Brown, 5 Vet. App. 211 (1993),
the Court noted that lay persons are not competent to offer
medical opinions and, therefore, those opinions do not even
serve as a basis for a well-grounded claim. Moreover, the
mere fact that the veteran was treated in service for
shoulder complaints, and that a bilateral shoulder disability
was demonstrated following service, does not provide the
evidentiary showing of continuity contemplated by 38 C.F.R.
§ 3.303(b) that would well ground a claim without competent
medical evidence supporting such a link. Savage v. Gober, 10
Vet. App. 488 (1997). Since the veteran's statements provide
the only link between his current disability and service, it
cannot be concluded that the veteran has submitted a well-
grounded claim.
II. A Total Rating Based on Individual
Unemployability due to Service-Connected Disability
The initial question before the Board is whether the veteran
has submitted a well-grounded claim as required by 38
U.S.C.A. § 5107. The Court has held that a well-grounded
claim is one which is plausible, meritorious on its own or
capable of substantiation. Murphy, 1 Vet. App. 78. In this
case, the veteran's statements concerning the severity of the
symptoms of his service-connected disabilities that are
within the competence of a lay party to report are sufficient
to conclude that his claim is well grounded. Proscelle v.
Derwinski, 2 Vet. App. 629; Espiritu v. Derwinski, 2 Vet.
App. 492 (1992). No further development is necessary in
order to comply with the duty to assist mandated by
38 U.S.C.A. § 5107(a).
Factual background
The veteran submitted a claim for a total rating based on
individual unemployability due to service connected
disability in November 1996. He reported that he had last
worked on a full-time basis in February 1990. He stated that
he had work experience as an administrative specialist. He
also noted that he had completed two years of college.
In a statement received in December 1996, an acquaintance
indicated that he had known the veteran for 15 years and had
observed him having up to four “spells” a day. He added
that during some of the spells, the veteran lost control of
his bowel movements. He related that the spells sometimes
lasted up to five minutes. On occasion, has body looked like
he would shake to death.
A VA neurological examination was conducted in December 1996.
The veteran noted that he was on medication for seizures. He
reported that the seizures were of a mixed-type, consisting
of psychomotor seizures, petit mal seizures and grand mal
seizures. A neurological examination was negative. It was
reported that the seizures occurred three times a day and
that they varied from petit mal to grand mal It was indicated
that the grand mal seizures usually occurred about two times
weekly. The diagnosis was complex seizure disorder, status
post head trauma.
On VA psychiatric examination in February 1998, the veteran
related that he had been laid off from work because he
started to have more seizures. He averaged about three to
four times a week, and that sometimes he would go a week when
he would have no seizures at all, but he was never without
seizures for longer than 1 ½ weeks. He claimed that his
sleep had always been impaired. No pertinent diagnosis was
made.
A VA orthopedic examination was conducted in February 1998.
The veteran related a history of having undergone magnetic
resonance imaging of both knees which reportedly showed torn
cartilage in both knees. He underwent arthroscopic
debridement of the left knee in 1995, but there had been no
surgical treatment on the right knee. He complained of
clicking and pain in the left knee and pain in the popliteal
area of the right knee. There was no locking, but there was
clicking, particularly if he was on his knees for a long
time. The clicking was more prominent on the left than on
the right. An examination revealed that he had a normal
gait. Flexion of the left knee was from 0 to 130 degrees.
It was stable to stresses. The medial joint line was
slightly tender. McMurray’s sign was negative on repeated
attempts. No patellofemoral crepitus or pain was reported in
the left knee. Range of motion of the right knee was from 0
to 134 degrees. There was no fluid in either knee. The left
knee was stable to stresses. There was tenderness in the
popliteal fossa of the left knee, although the examiner did
not feel any swelling. An X-ray study of the right knee was
normal. An X-ray study of the left knee revealed mild
narrowing of the medial compartment of the knee joint. The
diagnosis was status post medial meniscectomy times two of
the left knee and magnetic resonance imaging evidence of torn
medial meniscus in the right knee, without true locking.
On VA examination for cranial nerves in March 1998, the
veteran stated that he was on medication for seizures. He
indicated that the seizures were sometimes precipitated by
periods of increased emotional stress, but that they occurred
quite randomly otherwise. He stated that he had two seizures
per week. He did not keep a diary of the seizures and there
had been no change in their pattern. He did not drive and
avoid many activities due to seizures. The diagnoses were no
abnormality of cranial nerve function and no evidence of
cranial neuropathy.
A VA neurological examination was conducted in March 1998.
The veteran reported occasional incontinence of bowel and
bladder. There was no tongue biting with the episodes. He
reported occasional shaking, but more often he would “fall
out” during which times he would suddenly lose
consciousness. An electroencephalogram was within normal
limits. The diagnosis was history of possible seizure
activity, most likely type would be complex partial with
secondary generalization, and the examiner indicated that
further investigation was warranted.
The veteran was hospitalized by the VA from March to April
1998. It was noted that his seizures were preceded by
throbbing, one-sided headache, pulsating of the veins in his
arms and fluttering of the eyes before loss of consciousness.
He no longer smelled a sweet aura. His seizures occurred
about two times per week to two every other week. He stated
that the seizures were brought on by stress. It was noted
that he had some anuresis and was amnestic for spells unless
told. There was no wandering while he was having the
seizures. He complained of poor recent and long-term memory.
It was indicated that the veteran had undergone a work-up for
seizures by the VA in 1995 and was on telemetry with close
circuit television for two weeks with no seizure episodes.
He had a negative magnetic resonance imaging test. During
the hospitalization, telemetry with close circuit television
showed no seizures for over a two week period. The discharge
diagnoses were pseudoseizures and headaches. It was noted
that in the veteran was on medication which for headaches
only and not for seizures, since he had no evidence of having
seizures.
The veteran has been granted service connection for residuals
of head trauma, grand mal seizure and headaches, rated as 60
percent disabling; status post arthroscopy of the right knee,
evaluated as noncompensable and for status post meniscectomy
of the left knee, evaluated as noncompensable. The combined
scheduler evaluation is 60 percent.
Analysis
VA will grant a total rating for compensation purposes based
on unemployability when the evidence shows that the veteran
is precluded from obtaining or maintaining any gainful
employment consistent with his education and occupational
experience, by reason of his service-connected disabilities.
38 C.F.R. §§ 3.340, 3.341, 4.16.
In Hatlestad v. Derwinski, 1 Vet. App 164 (1991), the Court
referred to apparent conflicts in the regulations pertaining
to individual unemployability benefits. Specifically, the
Court indicated there was a need for discussing whether the
standard delineated in the controlling regulations was an
"objective" one based on average industrial impairment or a
"subjective" one based upon the veteran's actual industrial
impairment. The Board further note that it is bound in its
decisions by the regulations, the Secretary's instructions
and the precedent opinions of the chief legal officer of VA.
38 U.S.C.A. § 7104(c) (West 1991). In a pertinent precedent
decision, the VA General Counsel concluded that the
controlling VA regulations generally provide that veterans
who, in light of their individual circumstances, but without
regard to age, are unable to secure and follow a
substantially gainful occupation as a result of service-
connected disability shall be rated totally disabled, without
regards to whether an average person would be rendered
unemployable by the circumstances. Thus, the criteria
include a subjective standard. It was also determined that
"unemployability" is synonymous with inability to secure and
follow a substantially gainful occupation. VA O.G.C. Prec.
Op. No. 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992).
In determining whether appellant is entitled to a total
disability rating based upon individual unemployability,
neither appellant's non-service-connected disabilities nor
his advancing age may be considered. Van Hoose v. Brown, 4
Vet. App. 361 (1993).
For a veteran to prevail on a claim based on unemployability,
it is necessary that the record reflect some factor which
takes the claimant's case outside the norm of such veteran.
See 38 C.F.R. §§ 4.1, 4.15 (1998). The sole fact that a
claimant is unemployed or has difficulty obtaining employment
is not enough. A high rating in itself is a recognition that
the impairment makes if difficult to obtain and keep
employment. The question is whether the veteran is capable
of performing the physical and mental acts required by
employment, not whether the veteran can find employment. See
38 C.F.R. 4.16(a) (1998). Van Hoose v. Brown, 4 Vet. App. at
363.
Although the veteran has insisted that he has several
seizures, week, it is significant to point out that when he
was recently hospitalized by the VA for evaluation of his
seizures, it was specifically indicated that he was observed
on close circuit television for two weeks and that no
seizures were observed. His other service connected
disabilities affect his knees. In this regard, the Board
notes the that the most recent VA orthopedic examination
disclosed essentially full range of motion and the only
abnormal findings consisted of tenderness of each knee. The
veteran has argued that he does not have a driver’s license
as of result of his seizure disorder. The question in this
case is whether the veteran is capable of performing the acts
required by employment. Clearly, his service connected
disabilities are not shown to be so severe as to preclude all
forms of gainful employment. The Board points out that there
is no competent medical evidence of record demonstrating that
the veteran is unemployable solely due to his service
connected disabilities. The Board finds that the medical
evidence of record is of greater probative value than the
statements made by and on behalf of the veteran.
Accordingly, the weight of the evidence is against the claim
for a total rating based on individual on employability due
to service connected disability.
ORDER
Service connection for a left shoulder disability and for
residuals of a right shoulder injury is denied. A total
rating based on individual on employability duty service
connected disability is denied.
Deborah W. Singleton
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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